A divorce is never easy, and a divorce is inevitably accompanied by some type of trouble. For almost everyone, a divorce can be emotionally turbulent. For many, a divorce means financial trouble. If you’re a parent, a divorce means parenting problems and possibly a custody battle.
And if you are not a US citizen yet, you may need the help of an immigration lawyer because it may also affect your immigration status in the United States. For example, if you are waiting for your adjustment of status filed through your US citizen spouse; or you are already a conditional lawful permanent resident in the United States – a “green card holder” with a 2 year conditional period; or if you are a spouse of someone who qualifies for an immigration visa or adjustment of status; or if you are in the U.S. as the spouse of someone holding a non-immigrant visa, it’s quite possible that a divorce will cause some very negative immigration consequences for you.
A divorce could mean the revocation of your lawful permanent residency, and in some cases, removal from the United States – but not in every case.
WILL A DIVORCE PREVENT YOU FROM ACQUIRING A GREEN CARD?
But even the immigration authorities know that sometimes a marriage fails, so do not conclude that a divorce or an annulment of your marriage means that you cannot obtain a green card.
U.S. Citizenship and Immigration Services (USCIS), however, may investigate your marriage a second time for any evidence of marriage fraud.
What happens when an immigrant gets a divorce will depend to a great extent on the immigrant’s status when the divorce is finalized.
If a relative in the U.S. has submitted an I-130 visa petition on your behalf and that petition is pending when your divorce is finalized, you may no longer be qualified.
WHAT ABOUT NON-IMMIGRANT VISA HOLDERS – AND THEIR SPOUSES?
Experienced Las Vegas immigration attorney Margo Chernysheva explains that if you divorce while you are in the United States as an asylee or with a non-immigrant visa, your spouse may lose his or her immigration benefit because of the divorce.
For example, let’s say that your spouse is employed in the United States and holds an L-1A non-immigrant intracompany transferee visa.
You accompany your spouse to the U.S., and you hold an L-2 visa – which is dependent on your spouse’s status. If you and your spouse divorce, you lose your immigration status the moment that the divorce is finalized, and you’ll have to leave the United States or apply for your own independent visa.
WHAT IF YOU DIVORCE WHILE YOUR GREEN CARD REQUEST IS PENDING?
If an immigrant has applied for adjustment of status – that is, for a green card by submitting Form I-485 – but has not yet been interviewed for adjustment of status at the time the divorce is finalized, the I-485 application may be denied, and/or the interview may be canceled.
Immigration attorney Margo Chernysheva explains that if your divorce is finalized while Form I-130 or Form I-485 is pending or during “I-130/counselor processing, divorce means the end of the benefit eligibility.”
DO YOU QUALIFY UNDER THE VIOLENCE AGAINST WOMEN ACT (VAWA)?
However, under the federal Violence Against Women Act (VAWA), an immigrant may qualify to become a lawful permanent resident if that immigrant is a victim of battery or extreme cruelty committed by:
1. a U.S. citizen spouse or ex-spouse
2. a U.S. citizen parent, son, or daughter
3. a lawful permanent resident spouse, ex-spouse, or parent
Attorney Chernysheva explains that if your case “is a VAWA case, you will need to be divorced to receive the benefit.”
When an immigrant is approved for a green card prior to marriage, if that marriage ends in divorce, the immigrant’s lawful permanent resident status probably will not be at risk, but if that green card holder later seeks U.S. citizenship, immigration authorities will take a closer look.
CAN CONDITIONAL RESIDENCY STATUS BE REMOVED AFTER A DIVORCE?
If you are an immigrant who was married to a citizen of the U.S. for less than two years when your green card was approved, you received “conditional” residency status. You request the removal of conditional status – and a green card – by submitting Form I-751.
However, the I-751 is a joint form that needs to be signed by both spouses.
If you divorce while your residency status is conditional, you may have difficulty obtaining a green card. In fact, when you submit Form I-751, you may be required to include proof that the marriage, although it was short and ended in divorce, was not fraudulent. The proof may include:
1. joint bank account statements
2. children’s birth certificates
3. a mortgage or rental agreement signed by both spouses
4. statements from marriage counselors or therapists that the marriage was not fraudulent
According to Las Vegas immigration attorney Margo Chernysheva, if you can prove that your marriage was legitimate, you will probably have no difficulties when you submit Form I-751 requesting the removal of conditional residency status.
Attorney Chernysheva says that your divorce “may or may not affect the process as it depends on many factors, but mostly it should not if the marriage was entered into for reasons other than immigration and was a bona fide marriage.”
HOW DOES DIVORCE AFFECT NATURALIZATION?
When you are a green card holder, and you apply for U.S. citizenship, USCIS reviews your immigration file and takes a closer look at the information in that file regarding your marriage.
A divorce or annulment, while your citizenship application is pending, will probably trigger a full re-examination of the case for any indication that your marriage was fraudulent.
When you submit Form N-400 to apply for U.S. citizenship after a divorce, you may need to produce documents to prove that your marriage was not fraudulent.
The 3-year path for spouses of U.S. citizens and the 5-year path for other lawful permanent residents are the two standard ways that adults become U.S. citizens.
Even though immigration authorities will already have abundant information about you, at this stage, they may require more recent and relevant documentation about your marriage and its legitimacy.
Attorney Chernysheva explains that, “If applying for N-400 (naturalization) under the 3-year provision, divorce or even separation will affect eligibility. If it is under the 5-year rule – no.”
If USCIS is not persuaded that your marriage was legitimate, you could conceivably face removal proceedings.
WHAT IS THE WISEST THING AN IMMIGRANT CAN DO AFTER A DIVORCE?
Immigration difficulties are often an unfortunate result of divorce, but in any of the situations discussed here, the wisest thing you can do is to obtain the advice – and if necessary, the representation – of an experienced immigration attorney.
It doesn’t matter what your immigration status is – you have the right to an attorney’s help. If you are dealing with any immigration matter related to a divorce, get that help immediately. Nothing is more important than your future.